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1 ISBA CLE PRESENTATION ON DUI POINTS OF INTEREST March 8, 2013 Judge Chet Vahle, Betsy Bier & Jennifer Cifaldi I. DUI Cannabis or Drugs FACT SCENARIOS AND QUESTIONS A. Causal connection when unlawful substances in the blood, breath or urine. Facts: Martin crossed the center line one night as he drove home from the tavern, and killed two people in an oncoming car. He was taken to the hospital to treat his injuries, where he provided blood and urine samples. Subsequent testing revealed no alcohol or controlled substances in his blood, but his urine contained methamphetamine. At trial on the subsequent aggravated DUI charge, the state s toxicologist testified that her testing indicated the presence of methamphetamine in defendant s urine, but not how much. She was not surprised at finding methamphetamine in the urine but not in the blood, because controlled substances enter the bloodstream first and are eventually eliminated through the urinary tract. Defendant admitted to a friend that he had consumed meth prior to the accident but did not say when, and told his friend that he was not on crystal meth that night. The defendant s forensic toxicologist testified that the amount of meth in defendant s urine was so small that the test result should have been negative. Following the jury s guilty verdict, the defendant appealed. In a split decision, the appellate court reversed the felony DUI conviction because the state had failed to prove that the methamphetamine in the defendant s system was a proximate cause of the deaths. The Supreme Court granted leave to appeal. Question #1: Must the state prove the causal connection between the illegal substance in defendant s body and the death of the victims? 1

2 B. Proving illegal substances in the body. Facts: Allen was stopped by the police during a roadside safety check. Allen was outside his car when the officer smelled a strong odor of burnt cannabis coming from the car. When speaking to Allen the officer also noticed the same odor on Allen s breath and that his pupils were dilated. The officer asked the defendant if he was smoking marijuana and Allen admitted that he had smoked some grass within the past 24 hours. The officer knew the smell of burnt cannabis based on his hundreds of cannabis arrests and the unique smell of burnt marijuana. The defendant was charged with DUI under (a)(6), that a person shall not drive or be in actual physical control of any vehicle within the State while there is any amount of drug, substance, or compound in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis. Question #2: Is this evidence sufficient to find Allen guilty of driving under the influence of cannabis? Question #3: Can the officer testify as to his belief that the defendant was under the influence of cannabis based on his observations and experiences? More Facts re Justification for Field Sobriety Tests: At trial the officer testified that he had asked Allen to take field sobriety tests, and Allen refused. The officer also testifies that no moving violations or indicators of intoxication were witnessed, other than the smell of the smoke and the dilated pupils. The defendant objects to testimony about the refusal to take the FSTs, arguing that there was no probable cause to believe that he was driving under the influence. The state argues that no pc is necessary, only reasonable suspicion. Question #4: Must there be probable cause to arrest before the FSTs may be requested? 2

3 II. Compliance with Illinois Administrative Code re logbooks Facts: Claudio was arrested for DUI and was brought to the station for processing. While at the station he took a breathalyzer test that showed he was over the legal limit. The defense attorney asked for and received the breath logs for that machine. The logs did not show Claudio s breath test. Claudio s attorney filed a motion in limine seeking to preclude any evidence of the breath test for non-compliance with 20 Ill.Admin.Code That provision of the Code calls for the keeping of a logbook that indicates the testing of the breath machines. Question #5: Should the omission of Claudio s test from the breathalyzer logbook preclude the state from admitting the results? Question #6: Would the answer be different if the recent state police testing of the machine was not included in the log book? Question #7: Is the certification of the machine testimonial hearsay under the Crawford v. Washington case, requiring the breath operator s testimony? Question #8: If the logbook is not testimonial, could the State call another expert to testify regarding the breath test results if the original operator was unavailable to testify? III. Statutory Summary Suspensions - Standing, scheduling, evidence Facts: A defendant is charged with an (a)(2) DUI and other traffic charges. His attorney files a timely petition to rescind the statutory summary suspension (PTRSSS). The State s Attorney moves to strike the petition for lack of standing as the defendant does not have a valid driver s license. The defense attorney responds that that the petition is meritorious and to deny him a hearing will would have the effect of preventing him 3

4 from being able to get a driver s license. Question #9: Should the State s motion to dismiss on the lack of standing issue be granted? Question #10: Would it make a difference if the defendant s license was expired or if the basis for the suspension was easily remedied? Question #11: What if the defendant was revoked or never had a driver s license? Question #12: Is this an equal protection issue, as it affects a group that cannot get a license, specifically Hispanics without a SSN? IV. Hearing the Petition to Rescind the Statutory Summary Suspension (PTR) - 5 th Amendment and Motions to Quash Facts: Tilden is arrested and charged with DUI after a traffic stop. His attorney files a timely motion to quash arrest and also a petition to rescind the summary suspension. The State wants to hear the matters simultaneously. The defense attorney objects. Question #13: Can they or should they be heard together? Question #14: Does it depend on what grounds the petitioner/defendant is alleging in the Petition to Rescind the SSS? More Facts: At the PTRSSS hearing the State seeks to call the defendant as a witness. Defense counsel objects. Question #15: Does the defendant have a 5 th Amendment right not to testify? Is the answer the same if the Petition to Rescind is heard contemporaneously with a Motion to Quash the Arrest? Question #16: If the defendant does testify, can this testimony of the defendant be used by the State at trial? 4

5 V. DUI chemical testing right to refuse Facts: Jones was involved in a one car accident. He complained of chest pains and was taken to the hospital. While at the hospital the officer read the defendant his warnings to motorist and the defendant refused to consent to a blood draw or urine sample. The hospital did not request blood or urine samples for defendant's medical treatment. Jones continued to object to the taking of any samples though he said that he would not physically resist their collection. A hospital phlebotomist then drew the blood at the officer s direction and the defendant later gave a urine sample to the officer. The samples were tested and came back positive. The defendant was charged with DUI. The defense filed a motion in limine prohibiting the introduction of the non consensual blood and urine draws, claiming that the provision allowing the admissibility of non-consensual chemical testing in (c)(2) applies only in situations where there was death or personal injury to a party. The State conceded there is no personal injury involved but consent is not a prerequisite to admissibility. Question #17: Should the results of the blood and urine tests be admissible? Question #18: Is there a recognized right to refuse chemical testing? Question #19: May the officers use physical force in obtaining blood, urine or breath samples? Question #20: Would the issuance of a valid search warrant for the defendant s blood allow the use of necessary force to obtain the sample? VI. Date of the Statutory Summary Suspension Hearing Facts: The defendant is arrested for a DUI on October 20 th. The defense attorney files a petition to rescind the summary suspension immediately. On the first court date he 5

6 answers ready and asks for the suspension issue to be addressed. Question #21: What if there was no confirmation of the suspension in the court file? Does the court have jurisdiction to hear the testimony or any argument on the matter? More Facts: The defense files a PRSSS on November 1 st in the clerk s office. The state receives notice on Nov 4 th. The case is next scheduled for December 3 rd. On that day, Dec 3 rd the state answers ready. The defense files a motion to grant the SSS pursuant to the Supreme Court opinion in the Schaefer case because the hearing was not commenced within 30 days of the filing of the petition. The state argues that Dec 3 rd is within 30 days of receiving notice of the filing, that it is the first court date after the petition was filed, and that there is no due process violation as the suspension does not go into effect until December 14 th, 46 days after the arrest and notice of impending suspension was given to the driver. Question #22: Should the defendant s petition to rescind be granted? VII. DUI Evidence- Destroyed video evidence Facts: An officer sees a car driving erratically and weaving between lanes. The officer activates his emergency equipment which turns on the squad s on-dash video camera. The car is pulled over and he officer believes that the driver is under the influence. He asks him to step out and perform field sobriety tests. The defendant complies and the FST are performed in a location where the camera can record the tests. The officer then arrests Jeff Spicoli after the officer believes he miserably fails the tests. Spicoli refuses to perform a breath test, saying I m so wasted. Defendant filed a petition to rescind the SSS and a motion to quash arrest and suppress evidence. Contemporaneously, defendant filed a Rule 237 Notice to Produce all video evidence, among other things. At the 6

7 hearing on the petition and motion, it is learned that due to an apparent oversight, the police department did not receive the Notice to Produce from the prosecutor, and the video evidence was destroyed pursuant to an automatic purge policy; the normal practice is to only hold the tape for 30 days unless someone requests otherwise. The defense attorney makes a motion asking the case be dismissed as the State destroyed evidence that was Brady material, exculpatory to the defense. He also alleges there is a due process violation. Question #23: Should the motion to dismiss be granted? Question #24: Does it make a difference if there was no bad faith regarding the video s destruction? Question #25: After the motion to dismiss is denied, the defense asks that the officer be barred from testifying about the matters that would have been on the video. Is this the appropriate sanction? Question #26: If the testimony is allowed, should the jury be instructed how to consider the fact that the tape was destroyed? More Facts: What if during closing arguments the prosecutor in rebuttal said that Spicoli had the opportunity to show that he was not guilty because if he blew and was under the legal limit we would not be here now. Spicoli did not testify at trial. Question #27: Did the prosecutor improperly try to shift the burden on this matter, arguing that defendant could have proved his innocence? Question #28: Is the prosecutor improperly commenting on the 5 th Amendment right to remain silent and inferring that defendant s silence at trial is evidence of guilt? 7

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